NESARC Questions FWS Statutory Authority in Testimony on Proposed Changes to Mitigation Policy

In offering testimony today to members of the Senate Committee on Environment and Public Works’ Fisheries, Water and Wildlife Subcommittee, National Endangered Species Act Reform Coalition (NESARC) Chairman Ryan Yates outlined the Coalition’s concerns with proposed changes to the U.S. Fish and Wildlife Service’s (FWS) Mitigation Policy.

Reiterating many of the points included in NESARC’s written comments to FWS earlier this year, Yates highlighted NESARC’s concern that the agency lacks the statutory authority for implementing the Mitigation Policy. According to Yates, “[t]he proposed revisions to the Mitigation Policy, and the Administration’s other recent policies addressing mitigation, test the boundaries of agency authority and likely exceed the scope of the applicable statutory framework without offering clear and transparent guidance to the regulated community.”

Yates also took issue with the imposition of a “net conservation gain” standard in the status of affected resources. “[T]he Mitigation Policy fails to provide the basis and authority for imposing a net conservation gain requirement and needs additional clarification on how the implementation of such a requirement would occur in practice,” he said. “Federal agencies cannot, by fiat, attempt to impose a net conservation gain as an absolute mitigation requirement, absent a clear grant of such authority from Congress.”

In his testimony, Yates contended that the Mitigation Policy’s landscape-scale approach is overly expansive and fails to consider the role of states and local jurisdictions in species conservation. Specifically, he testified that “FWS cannot incorporate landscape-scale mitigation into permitting decisions or authorizations without explicit statutory authority that requires such a broad ecological approach. Further, FWS’s definition of landscape and its reliance on a landscape-scale approach are not conducive to consistent application and would undermine the role of States and other local jurisdictions in the management of species and habitat.”

Finally, Yates called for flexibility and innovation to encourage conservation. “Assuming that FWS demonstrates the requisite statutory authority, to be successful, the Mitigation Policy must provide incentives and reduce the barriers for landowner participation. FWS must recognize voluntary conservation planning efforts that are associated with a particular species, habitat, or activity and allow such efforts to be applied as mitigation under the Mitigation Policy,” said Yates.

FWS proposed the changes to the Mitigation Policy earlier this year in response to directives from the President and the Secretary of the Interior. NESARC’s written comments on the proposed changes may be found on the Coalition’s website at

Earlier this month, the agency published a draft Endangered Species Act Compensatory Mitigation Policy (CMP). According to Yates, “the CMP contains many of the same issues and deficiencies that are inherent in the general Mitigation Policy.” NESARC is still reviewing the proposed CMP in order to submit comments and is awaiting FWS’s response to its request for an extension of the comment period.

NESARC is the country’s oldest broad-based, national coalition dedicated solely to achieving improvements to the ESA and its implementation. The Coalition includes agricultural interests, cities and counties, commercial real estate developers, conservationists, electric utilities, energy producers, farmers, forest product companies, home builders, landowners, oil and gas companies, ranchers, water and irrigation districts, and other businesses and individuals throughout the United States.